Property
6. Easements
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 12 Jul 2015
- An easement over land gives a person a proprietary interest in another person’s property. The proprietary interest associated with an easement is usually the right to use the land for a specific purpose.
- The owner of the land burdened by the easement can continue to use their land as they please but cannot exclude the possessor of the easement from using it in the way permitted.
- There are four types of easements under Australian property law.
- Easements of way allow access across another person’s property. For example if you have to use your neighbour’s driveway to reach part of your property.
- Service easements include drainage, sewerage and utilities easements. For example if Sydney Water has a main drainage pipe running underneath your property a service easement is created in their favour.
- Positive easements give an individual the right to do something on land.
- Negative easements restrict an individual’s right to do something on land.
- In order to create an easement there must be a dominant and servient tenement. The dominant tenement is the land that gains something from the easement such as a right of access. Servient means that the land is burdened by an easement such as the right of access crossing the land. Public authorities and the Crown can hold easements ‘in gross’ meaning there is no dominant tenement or benefiting land.
- The easement must ‘accommodate’ the dominant tenement meaning that the easement must be of clear benefit and sufficiently connected to dominant tenement.
- The dominant and servient tenement must be held and occupied by different persons.
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